As there have been recent discussions about Kitzmiller, I have been thinking about some particular issues relating to the testimony of Michael Behe at the trial.
Behe speaks of the trial as having been “Kafkaesque,” and he suggests that anyone who would like to understand what he means by that should read The Trial. But as a person who studied Kafka long, long ago, I can see something Kafkaesque, but it’s not what Behe sees. Behe’s experience did not much resemble that of Josef K., but there is, I think, a fit in Kafka’s work which is closer: Gregor Samsa. Behe supposes, having that lack of objectivity from which we all suffer when our own identity is concerned, that his trial testimony made sense, and went on making sense, while the rest of the world spun out of control. But as relativity teaches, the world can look like it is spinning out of control for other reasons entirely; and a court will judge matters from its frame of reference, not from the frame of reference of the witness.
In The Metamorphosis, it is Gregor who transforms from the sensible to the absurd, and from the ordinary to the loathsome, while the world goes on around him, making as much sense as it ordinarily does. This does fit Behe pretty well. Before Kitzmiller, the worst that might have been said of him was that he was a bit of a crank. But along comes an angry group of anti-constitutionalist Bible-thumpers, seeking a way to get creationism into the schools, and what does Behe do? Does he stand with science, and tell these people that they have no business forcing their religion down the throats of children? No; he allies himself with them and defends their fanatical agenda. And, of all the places to do this, he chooses to aid them in a US District Court, not the best place to push an anti-American cause. The scenario is about as promising as a terrorist, caught with the bomb in his hands, coming to the US District Court to explain that this has all been one hilarious misunderstanding – but Behe pushed on, even as most of the DI fellows who had signed up for this got back on their Ark and sailed out of town. In taking on this cause, Behe became like Gregor Samsa: at once absurd and loathsome. Absurd, because he found himself uttering thoughts like the idea that astrology is a scientific theory, and loathsome, because he fought to deprive others of the benefits of the fundamental values on which our civilization is based. Kafkaesque? Perhaps; but Behe was at least a co-author.
Tim asked, in relation to that infamous “astrology” gaffe at trial, whether that testimony had come out at the deposition, and I realized that I’d never reviewed Behe’s deposition or his expert report – these not being part of the trial record. Nick Matzke was kind enough to provide me with both documents, and, being a great fan of tragic absurdist literature, I settled in for a long read.
I can confirm that the astrology testimony did indeed come up, briefly, in the deposition. I think I can also explain how it came up and why it apparently failed to alarm either Behe or defense counsel sufficiently to result in a better-developed answer at trial.
The sequence of work, in a case involving an expert witness, ordinarily is this: first, an expert “report” is prepared, which sets out the topics on which the witness will testify and the substance of the opinions he will render. The purpose of this report is to provide discovery to the opposing counsel – here, the counsel for the parents (invariably referred to, inaccurately, by the DI’s culture warriors, as “the ACLU”). Opposing counsel then, in most jurisdictions, takes a deposition of the expert for the purpose of preparing both opposition testimony and cross-examination.
One of the oft-stated “rules” of trial practice is that you never ask a question of a witness if you do not already know the answer, and so there often is significant development of cross-examination at the deposition. This is the only “live” opportunity to test questions out. If you ask a question like “would astrology be a scientific theory under your definition” at trial for the first time, you never know what will come back – and sometimes, by asking a question you do not know the answer to, you make a regrettable mistake because the answer is better than anything you’ve anticipated or is simply something you are not prepared to follow up correctly. So, if you’re going to get damning admissions from a witness, the deposition is a great place. If the witness answers the question at trial consistently with his deposition, great; if he answers inconsistently, you get to pull the deposition transcript out as “impeachment” material to challenge the consistency and credibility of the witness. And if the witness has given a brilliant answer to the question which isn’t helpful to you at the deposition, well, you don’t ask that blasted question at trial.
Behe’s expert report is, to use a technical term, downright weird. One might expect the thing to be devoted principally to the defense of ID Creationism – to an attempt to show that, though the ORIGINS of ID are in the intellectual swamp of fundamentalism, ID has matured into something which is legitimately scientific, with nary a bit of slime still dripping from its limbs. Excising the creationism from ID, in the face of history, isn’t easy, but if anybody could do it, Behe could. That there’d be very little left of ID after the operation is certainly very clear: it’s reminiscent of the famous remark by Christopher Hitchens upon Jerry Falwell’s death: that if you give him an enema first, you can bury the man in a matchbox. But one matchbox full of genuine scientific inquiry would be better than the whole bloated corpus of creation science, and might contribute to a win; nobody could stuff that matchbox better than Behe.
But that’s actually not the leading theme of Behe’s report. He doesn’t even get to whether ID is creationism until page 15, and when he does, he has to rely on a very narrow definition of “creationism” (essentially an ‘only YECs need apply’ definition) in order to make the argument. The first argument out of the gate, on which Behe spends more words than on anything else, is that there’s more than one usage for the word “theory.” He concludes that ID is a “theory” because it is “a proposed explanation for a set of facts.”
This position on Behe’s part is the gateway to his “astrology” testimony, and what’s rather odd is that, frankly, Behe could probably have left this whole issue out of the testimony and nothing would really have been missing. The statement to be read to the students – the gravamen of the whole complaint – said:
"The Pennsylvania Academic Standards require students to learn about Darwin’s Theory of Evolution and eventually to take a standardized test of which evolution is a part.
Because Darwin’s Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.
Intelligent Design is an explanation of the origin of life that differs from Darwin’s view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves.
With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the Origins of Life to individual students and their families. As a Standards-driven district, class instruction focuses upon preparing students to achieve proficiency on Standards-based assessments."
Notice something? The Dover Area School Board says specifically what definition of “theory” it is using, and it’s not Behe’s definition! This statement, taken by itself or together with more conventional definitions of what a scientific theory is, precludes the possibility that the District intended the word “theory” to mean what Behe says it might mean. Whether one uses the National Academy of Sciences term that a theory is “well-substantiated” or the Dover Area School District’s statement that it is “well-tested” (which we may presume implies that it has not failed, and so is more or less the same thing), it’s clear that “theory” as employed here does not merely mean a proposed explanation.
It is also clear that the District did NOT describe ID as a “theory” but only as “an explanation.” So, the only significance of the use of the word “theory” in the statement is in its characterization of what the District calls “Darwin’s Theory.” It has no relevance to how the District has characterized ID. To defend the District’s statement, one does not need to defend the notion that ID is a “scientific theory,” and yet this contention occupies pages of Behe’s report.
Remember that in an adversarial system, every case is about its own facts; it is not about some generic or broader set of facts in the larger world. It doesn’t resolve hypothetical scenarios, but addresses the facts which played out between the parties before they went to court. When it is clear that nobody in the dispute is using the word “theory” in the sense employed by Behe in his report, this renders Behe’s contentions on the definition of “theory” quite irrelevant: a strange excursion through the linguistic territory of multiple usages for a term, with no bearing on the dispute under review. The question is whether teaching this statement to children, on the taxpayer’s dime, is an infringement of the First Amendment. The statement contains its own definition of “theory” which might be illuminated or clarified further (e.g., by the similar language used by the National Academy of Sciences) but not set aside in favor of something contradictory to the statement under review.
So this whole phase of Behe’s testimony was of no real importance in dealing with the dispute. What good could it do the defense? Very little; but, irrelevant though it may be to the core issues, it opened the door to questions which the defense should have been more cautious about allowing Behe to answer. It provided some splendid material for breaking down just what it meant when the defense experts admitted that ID was not a “theory” within the NAS or similar definitions. When Behe testifies to how ID comes into the definition of “theory” if the definition is loosened, naturally the question arises: what else would then come in? And there it is, right at p. 132 of the deposition, looking almost like nothing but a little sneeze in the transcript:
“Q. Is astrology a theory under that definition?
A. Is astrology? It could be, yes.”
My sense, reading this in the context of the whole transcript, is that defense counsel Eric Rothschild probably knew he’d hit pay dirt there. And he had the good judgment to stop: don’t stress the point, don’t draw a lot of attention to it. If he’d insisted on making more of it then, it might well have drawn a more careful answer, and drawn more attention from defense counsel, and the effect might have been spoiled. As a veteran litigator told me once when I was new to taking depositions, a witness comes to the deposition with a story to tell, and it is your job not to let him tell that story. Whatever else Behe might have said on the point, it could be of no further use to the plaintiffs, and Rothschild stopped there. I think, frankly, that with all of the issues flying around and with everyone in the room a bit tired after hours of testimony, it’s likely that defense counsel never focused on this and never pointed out to Behe that he’d better be able to qualify this answer at trial. If there was no focus on that by defense counsel – something we will never know – that was certainly a serious mistake by counsel. If that subject was raised and Behe failed to address it, that was certainly a serious mistake on his part.
It’s always easy, of course, to Monday-morning-quarterback this stuff. But it certainly seems clear, with the benefit of some hindsight, that the defense team gave Behe’s testimony a scope it ought not to have had. Behe was better situated than any other witness to establish something the defense really needed: that ID represents a valid scientific inquiry into the facts and organizing principles of biology. He was less well situated to deal with the philosophical issues, the science/religion demarcation problem, or the pedagogical issues. But on those issues, the Board came up rather short of help elsewhere, too. Fuller was a disaster on philosophy, affirming in his report that ID had a “commitment to supernaturalism”; a cellar-cooled pint of Fuller’s London Pride would have made a more helpful expert, even if all it had done was leave a circular condensation mark on the witness chair.
If one were to try Kitzmiller again, for the defense side, one would probably want to give Behe a more restricted scope. The plaintiffs’ expert who needed to be answered most forcefully, and whose testimony was extremely important, was Barbara Forrest (whose upcoming interview with @swamidass I greatly look forward to!). It might be that the defense originally hoped to do more of that work via the testimony of Stephen Meyer, who certainly could do the defense no good whatsoever on the scientific issues but might have been able to blur the linkage between ID and other forms of creationism. But feuding within the defense camp resulted in Meyer running out on the defense before deposition or trial, so it is very hard to say how good a job he might have done.
What Kafka might have had to say on the matter remains anyone’s guess. My suspicion is that the author of The Metamorphosis might have found the whole thing too implausible to make a good story.